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Legal Status of the Right to Vote
Context: As the Supreme Court hears petitions challenging the Special Intensive Revision (SIR) of electoral rolls in Bihar, a key legal issue under scrutiny is the status of the ‘right to vote’ in India.
What Are the Different Types of Rights in Indian Law?
To understand the legal status of the right to vote, it’s essential to differentiate among natural, fundamental, constitutional, and statutory rights:
- Natural Rights: These are inherent and inalienable, such as the right to life and liberty. Though not directly enforceable, courts may interpret them within fundamental rights.
- Fundamental Rights: Enshrined in Part III of the Constitution, these include equality, freedom of speech, and protection of life and personal liberty. They are enforceable in the Supreme Court under Article 32.
- Constitutional Rights: These are derived from provisions outside Part III, such as the right to property or free trade, and can be enforced under Article 226 of the Constitution.
- Statutory Rights: These are conferred by ordinary laws, such as the right to work under MGNREGA or food security under the NFSA. They are enforceable through the mechanisms specified in the statutes.
What Does the Indian Constitution Say About the Right to Vote?
- Article 326 of the Constitution grants universal adult suffrage, ensuring that every citizen of India above the age of 18 years, unless disqualified by law, has the right to be registered as a voter. This is the foundation of electoral democracy in India.
- To operationalise this, Parliament enacted:
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Representation of the People Act, 1950 (RP Act, 1950):
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- Section 16 disqualifies non-citizens.
- Section 19 mandates that voters be 18 years old and ordinarily resident in a constituency.
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Representation of the People Act, 1951 (RP Act, 1951):
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- Section 62 allows only registered voters to cast a vote.
- It excludes persons disqualified under the RP Act or those in prison.
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What Have Indian Courts Ruled About the Right to Vote?
The legal status of the right to vote has been examined in several landmark judgments:
- N.P. Ponnuswami case (1952): The Supreme Court held that voting is a statutory right, subject to restrictions.
- Jyoti Basu case (1982): Reaffirmed that the right to vote is not a fundamental or common law right, but a statutory right.
- PUCL case (2003): Justice P.V. Reddy noted that while not fundamental, the right to vote could be viewed as a constitutional right.
- Kuldip Nayar case (2006): A Constitution Bench clearly ruled the right to vote is only statutory.
- Raj Bala case (2015): A Division Bench called the vote a constitutional right, echoing the PUCL view.
- Anoop Baranwal case (2023): The majority opinion aligned with Kuldip Nayar, reinforcing that voting is a statutory right.
Is There a Case for Reclassifying the Right to Vote as a Constitutional Right?
- In a dissenting opinion in the Anoop Baranwal case, Justice Ajay Rastogi argued that:
- The right to vote expresses a citizen’s choice, linked to Article 19(1)(a) (freedom of expression).
- Free and fair elections are part of the basic structure doctrine.
- Article 326 provides a constitutional basis, even if voting is presently regulated by statute.
- He suggested that it may be time for the Supreme Court to elevate the right to vote to a constitutional right, if not a fundamental one.
